Category: First Instance Tribunal

Prosecutor v A.S., N.N. et al.

On By In First Instance Tribunal
Antwerp First Instance Tribunal, Prosecutor v A.S., N.N. et al, Nr. 20/A/3763, 4 February 2021

The Tribunal of First Instance imposes heavy prison sentences on four individuals of Iranian origin, including an diplomat accredited to the Iranian embassy in Austria, for planning a terrorist attack. The Tribunal finds that the diplomat cannot invoke immunity from jurisdiction under Article 31 VCDR, since this only applies in the bilateral relationship between the sending and the receiving State. In addition, the diplomat was not in transit in the sense of Article 40 VCDR. This provision must be read restrictively, and does not extend to situations where a diplomat is on a holiday abroad. The Tribunal also observes that the activities of which the diplomat is accused cannot form part of the normal diplomatic function, and that it cannot have been the intention of the States parties to the VCDR for such acts to be covered by diplomatic immunity.

According to the Tribunal, the immunity of Iran itself is not triggered since Iran or its secret service are not a party to the proceedings. With respect to the residual functional immunity of the diplomat as a State organ, the Tribunal asserts that such immunity extends only to acts performed in the exercise of official functions. The planning of a terrorist attack can be presumed not to be part of such tasks. Nor did Iran claim responsibility for this conduct. In any case, the Tribunal finds it difficult to accept that there is an exception to State immunity for commercial acts, but not for crimes against humanity that flout the basic right to life.

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A. et al v Kingdom of Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, A. et al v Kingdom of Belgium, Nr. 2020-14-C, 29 April 2020

This case concerns a man who travelled to Syria in 2013 and who was detained in the prison of Al-Hasakah by the Syrian-Kurdish authorities. Relying on several human rights and humanitarian treaties, the man claimed that the Belgian government was under an obligation to repatriate him from Syria. The Tribunal nonetheless held that the applicant was not within the ‘jurisdiction’ of the Belgian State, and that he could also not rely on the Geneva Conventions or the ICC Rome Statute since Belgium was not a party to the armed conflict in Syria. The Tribunal further held that, having travelled to Syria on his own initiative, the applicant was not entitled to consular assistance pursuant to Article 83 of the Belgian Consular Code.

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Baghouri et al. v Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2020/******/C, 25 February 2020

The case concerns an appeal by the Belgian government against an Order of the Tribunal of First Instance of 11 December 2019, ordering the Belgian State to provide consular assistance to several children held at the Al-Hol refugee/detention camp in Syria, as well as to provide necessary identity and travel documents enabling them to travel to Belgium.

The Court recognizes the temporary impossibility for the Belgian State to fully execute the Order within the allotted time. This finding is based on the fact that the Belgian State repeatedly requested the Kurdish authorities for the Belgian State to be allowed to provide consular assistance to the children and to organize their repatriation without their parents. The Kurdish authorities refused this request several times because they could not allow the separation of the children from their parents under Kurdish law. In addition, the security threat was such as to jeopardize the security of the consular mission and the children during their repatriation. For this reason, the Court grants the Belgian State an extension of time to implement the decision.

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Baghouri et al. v Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, Baghouri et al. v Kingdom of Belgium, Nr. 2019/*/C, 11 December 2019

Several parents with Belgian citizenship staying at the Al-Hol refugee/detention camp in Syria claim that the Belgian State should be held liable to undertake all feasible measures to ensure the repatriation of their minor children and themselves.

The Tribunal of First Instance confirms that, since the entry into force of the Law of 9 May 2018, consular assistance is no longer a mere privilege, but a subjective right on the part of individuals covered by the Belgian Consular Code. This right, however, is not deemed to be absolute. Article 83 of the Consular Code indeed imposes several grounds for exclusion, including with respect to individuals who knowingly travel to a region where an armed conflict is ongoing. This manifestly applies to the plaintiffs, but not to their minor children, who should not bear the consequences of their parents’ acts, and who remain fully entitled to consular assistance.

In addition, the Tribunal rules that, given the severe neglect of their children by taking them into life-threatening war zone, the plaintiffs cannot invoke the children’s interest in not being separated from their parents against their will under Article 9 of the Convention of the Rights (CRC) of the Child in order to claim any right to assistance for themselves. The Tribunal confirms that neither the plaintiffs, nor their children, come within the jurisdiction of the Belgian State in the sense of the European Convention on Human Rights.

Based on the accumulation of international obligations assumed by the Belgian State (e.g. under the CRC and the Convention on Statelessness), and given the specific factual circumstances of the case, the Tribunal finds that the Belgian State is required to provide the children with the necessary administrative, identity and/or travel documents, to enable them to travel under supervision from Syria to Belgium.

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G v. Kingdom of Belgium

On By In First Instance Tribunal
Brussels First Instance Tribunal, G. v. Kingdom of Belgium, 19 December 2018

This case concerns a mother suing the Belgian state to enable the children she had with an Islamic State fighter during her stay in Syria, to travel to Belgium. The mother, who is detained in Turkey, used to have the Belgian nationality but currently only holds the Algerian nationality. The children were born in Syria but are living in Turkey and are de facto stateless.

According to the Court, the children had a sufficient connection with neither Syria, Turkey, nor Algeria. By contrast, there was a factual connection with Belgium. Furthermore, while it could be argued that, pursuant to the Convention of 1954 Concerning the Status of Stateless Persons, the claim to obtain travel documents should be directed to the Turkish government, this could not be expected to happen in practice.

Furthermore the Court ruled that, even if there was no specific legal ground obliging the Belgian State to provide the requested travel documents, the State nonetheless had an enforceable legal obligation to act, in light a range of commitments made, such as the general principle of aid and assistance to one’s own nationals, articles 50 and 75 of the Belgian Consular Code, the Convention of 1954 Relating the Status of Stateless Persons, the Convention on the Right of the Child, and article 8 of the ECHR. The Court accordingly ruled the claim to be well-founded and granted the requested provisional measures.

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